Oz court case exposes lack of fairness

Teenager charged over website linking

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Comment In Australia the Federal Government is looking at introducing a fair use style exemption to our copyright law. Yes I know … it’s hard to believe, but in Australia you can’t legally back up your music CDs, or even rip a CD you have paid for, so you can convert it into an iPod compatible format. You can’t even legally use your VCR or DVD recorder to record “Lust” or “Horny Housewives” so you can watch these TV programs later. Talk about a nation built on piracy … oops … I mean time shifting.

Personally, I always thought it didn’t really matter much – it’s like spitting, or not voting in elections, or jay walking – no one would ever be charged and prosecuted for such trivial offences. Hang on, in Oz voting is compulsory and we do get fined for not voting. (Wonder what Al Gore would think of that?) And a message for tourists – don’t jaywalk in North Sydney! As for spitting … just say no – go with farting instead, but please avoid open flames.

But seriously, I always thought that the Australian Federal Police (AFP) would never waste their time on trivialities such as a kid who allegedly linked to a website involved in “unauthorised copying” or a kid who has burnt CDRs which are “discovered” around the house when the family home is raided. After all, the AFP’s stated priorities are combatting organised crime, transnational crime, money laundering, major fraud, illicit drug trafficking and e-crime. The AFP’s operational slogan is: “To fight crime together and win.” Website-linking and burning CDs for personal use (if it took place) are simply not the type of activities hinted at by this slogan.

I even wonder why would the AFP even get involved in a low level case of alleged (there’s that word again) copyright infrignement? We’ve seen many cases run by the local recording industry without the AFP’s help in the past few years. The list is long and expensive … the Kazaa case, the Universities case, the Little Ripper vending machine case, the Swiftel ISP case, DJs, company employees, and Uni students. So why would the AFP use public money to protect the IP rights of major record companies, when the majors have shown that they are so effective at protecting themselves without their help?

The worried mother - and her son

With all this in mind, I was very surprised when I recently received the following email from a worried mother (whose name I have withheld, along with her son’s name, as per her request):

“Alex … I have been trying to contact you ever since I saw your op-ed piece in the Age on Monday. In it, you say "it is unlikely that the Australian Federal Police would ever investigate anyone for illegally copying a CD", however something almost like this happened to my son, XXX. When he was 12 years old, he put a link to WMA land on his website. He updated the link and added a few direct references to songs from time to time until he was about 15. When he was 16, 8 Federal police raided our house looking for our "distribution network" and now that he is 18 he is being prosecuted. The first hearing was originally set for yesterday but his lawyer has had it deferred. The salient charge is "aiding and abetting" the WMA land site. (The group of Federal Police included a (sic) ARIA representative who was seconded from Sony) … I would be pleased if you could let us know if there is anything you think he can do to prevent his prosecution. This seems grossly unfair and a version of using a mallet to kill a gnat.”

In a further email, she tells me:

“The thing that really freaked me out was having 8 federal police raid the house 18 months ago, and spend three hours going through all the computers and the dust under my son's bed. The also looked in the clothes dryer every time they walked past.”

Distribution of an Infringing Copy of a work in which copyright subsists, contrary to section 132(2)(b) of the Copyright Act 1968 (5 counts), and

Aid and Abet the Distribution of an infringing Copy of a work in which copyright subsists contrary to section 11.2 of the Criminal Code Act 1995 & Section 132(2)(b) of the Copyright Act 1968 (14 counts). These counts relate to the same works over which Charles NG was charged, in the operation of the MP3/WMA Land website.

The defendant has been charged for actions he is alleged to have undertaken when he was a minor.